Below is the abstract for “Parenting in a Post-Pandemic World: The Impact of COVID-19 on Custody Disputes,” available for download on SSRN.
The Supreme Court has long held that parents have a fundamental right to the care and custody of their children. When parents divorce or are unable to share custody, child custody disputes can become volatile. Family law practitioners attempt to counsel their clients through conflicts and help them plan for potential future conflicts in agreed parenting plans.
The COVID-19 pandemic brought uncertainty into the lives of many families. Schools were closed or moved to alternative forms of education, and many parents found themselves working from home. Court-ordered shared custodial arrangements were stressed with the disruption of family schedules and concerns associated with navigating a widespread and deadly novel virus. For families sharing custody, COVID-19 exacerbated tense parental relationships and interjected new and challenging legal issues for parents, legal practitioners, and courts.
Courts were faced with determining whether the emergent nature of the initial COVID-19 lockdowns permitted a parent with primary custody to deny, or alter the nature of, visitation rights by the other parent. Pre-pandemic, a parent would not be permitted to adjust a visitation arrangement without consent or court approval. During the pandemic, however, courts faced challenges by parents who argued that they were not able to comply with visitation due to state-ordered lockdowns or due to the practical challenges and risks associated with the virus. Additionally, parents with primary custody sought to condition visitation on compliance with a variety of safety measures, including regular COVID-19 testing or vaccination of the other parent. Such requests were met with varied results.
In addition, parents challenged prior custodial orders, seeking modification of physical and/or legal custody. Courts were asked to determine whether COVID-19 created a sufficient change in circumstances to permit a change in the custodial arrangement and whether a change would be in the child’s best interest. Courts were forced to re-evaluate how these legal standards should be applied in the context of an ever-evolving global public-health crisis. Not surprisingly, there were varied approaches taken by courts throughout the pandemic.
This article examines the impact of COVID-19 on child custody disputes, focusing primarily on child custody modification determinations and the enforcement of visitation rights. It will examine how the pandemic influenced the role of the court in interjecting notions of public health concerns when resolving parental disputes. Additionally, this article will analyze the ways in which custodial determinations were impacted by the COVID-19 pandemic; it will examine possible implications on post-pandemic child custody disputes with an eye towards providing guidance to legal practitioners in drafting parenting plans to accommodate future disruptions that might arise due to future spikes in COVID-19 infections. Finally, this article will propose revisions to the current legal standard and procedure used for considering child custody modification petitions when large-scale disruptive events, like the pandemic, happen in the future.